![]() | |
Other short titles | Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2023 |
---|---|
Long title | To establish a National Commission on Online Child Sexual Exploitation Prevention, and for other purposes. |
Announced in | the 118th United States Congress |
Sponsored by | House: Ann Wagner Senate: Lindsey Graham |
Number of co-sponsors | House: 29 Senate: 24 |
Codification | |
Acts affected | |
U.S.C. sections affected | Section 230 (47 U.S.C. § 230) |
Agencies affected | |
Legislative history | |
|
The EARN IT Act (S. 3538) is a proposed legislation first introduced in 2020 in the United States Congress. It aims to amend Section 230 of the Communications Act of 1934, which allows operators of websites to remove user-posted content that they deem inappropriate, and provides them with immunity from civil lawsuits related to such posting. Section 230 is the only surviving portion of the Communications Decency Act, passed in 1996.
A number of events in the 2010s led lawmakers to question the legal freedom that website operators have, and among other legislation options, the EARN IT Act was proposed to alter Section 230's protections and put more responsibility on website operators. While it initially failed to pass in 2020, it was reintroduced in 2022 and for a third time in 2023.
Section 230 was introduced as an amendment with the 1996 Communications Decency Act (CDA) that sought to amend the Communications Act of 1934. Section 230 was introduced by Senators Christopher Cox and Ron Wyden after seeing news of a pair of lawsuits, Cubby, Inc. v. CompuServe Inc. and Stratton Oakmont, Inc. v. Prodigy Services Co., which ruled very differently for two interactive computer services on the matter of their liability for user content solely because Prodigy moderated its content and CompuServe did not. [1] [2] The intent of Section 230 was to provide the same metaphor that ISPs were simply distributors of materials like booksellers, rather than publishers, and thus should not be responsible for the content they distribute for fear of creating a chilling effect on free speech. [3]
Section 230 contained two primary clauses that apply to any "interactive computer service" such as a website, an ISP, or similar content provider.
The CDA passed and was signed into law, but it was immediately challenged in the court system under Reno v. American Civil Liberties Union . The case concluded in 1997, ruling that all of the CDA excluding Section 230 was unconstitutional. [4]
Section 230 itself was challenged in other cases, but case law established its constitutionality, primarily with Zeran v. America Online, Inc. in 1997, in which the Fourth Circuit stated that Congress had recognized the threat of tort-based challenges to the growing Internet and properly provided the liability protections that ISPs needed to sustain operations. [5] Since then, Section 230 has generally survived all subsequent legal challenges, and the ability for the Internet to grow at a great pace has been attributed to it. Congress has passed one law that has impacted Section 230, the FOSTA-SESTA Act in 2018 that specifically removed liability protection from services that did not take actions against users knowingly involved in sex exploitation of children or sex trafficking. [6]
The 2016 United States presidential election drew concerns about possible Russian interference in the elections. In the wake of various allegations, the U.S. government, then with a Republican leadership, started questioning the role of the Big Tech companies—Google, Apple, Microsoft, and Facebook—as well as other social media sites like Twitter in moderating content. They faced increased pressure to address misinformation, hate, and violent content on their sites. [7] Social media sites took steps to moderate content [8] and, under their Section 230 allowance, blocked accounts they had deemed to violate their terms of service, most of which had come out of alt- and far-right groups. This led Republican lawmakers to claim that these sites were using Section 230 immunity to create a bias. [9] [10] [11] Senator Ted Cruz argued that section 230 should only apply to providers that are politically "neutral", suggesting that a provider "should be considered to be a liable 'publisher or speaker' of user content if they pick and choose what gets published or spoke." [12] Senator Josh Hawley alleged that Section 230 immunity was a "sweetheart deal between big tech and big government". [13] [14]
The bill, as amended, [15] would create a National Commission On Online Child Sexual Exploitation Prevention, a 19-member panel. The Attorney General, the Secretary of the Department of Homeland Security, and the Chairman of the Federal Communications Commission (or their representatives) would serve as three of the members, while the remaining 16 are selected by the majority and minority leaders of both the House and Senate from experts in investigating child exploitation, assisting those that have been exploited as children, consumer protections, and computer security, including representatives from computer services. The Commission once formed will develop and continually update a Best Practices document aimed to provide guidance to service providers to help them to prevent child exploitation and aid in investigation of such crimes.
The bill also crafts two additional changes to Section 230(c)(2)'s liability, allows any state to bring a lawsuit to service providers if they fail to deal with child sexual abuse material on their service.
Finally, the bill replaces nearly all instances of the wording "child pornography" in existing laws with "child sexual abuse material".
Senator Lindsey Graham introduced the EARN Act in the Senate on March 5, 2020, with co-sponsors Richard Blumenthal, Kevin Cramer, Dianne Feinstein, Josh Hawley, Doug Jones, Robert Casey, Sheldon Whitehouse, Richard Durbin and Joni Ernst; Senators John Kennedy, Ted Cruz, Chuck Grassley, and Rob Portman co-sponsored the bill later. [16] The bill was reviewed in the Committee on the Judiciary, and passed out of that committee on July 20, 2020 with an amended version to be voted by the Senate. [17] The bill was introduced to the House on October 2, 2020. [18]
The bill was reintroduced by Lindsey Graham and Richard Blumenthal in February 2022 [19] and passed unanimously by the Senate Judiciary Committee. [20]
The Act was reintroduced by Lindsey Graham in April 2023 to the 118th Congress. [21] [22]
Congress | Short title | Bill number(s) | Date introduced | Sponsor(s) | # of cosponsors | Latest status |
---|---|---|---|---|---|---|
116th Congress | EARN IT Act of 2020 | H.R.8454 | September 30, 2020 | Sylvia Garcia (D-TX) | 5 | Died in Committee. |
S.3398 | March 5, 2020 | Lindsey Graham(R-SC) | 16 | Died in Committee. | ||
117th Congress | EARN IT Act of 2022 | H.R.6544 | February 1, 2022 | Sylvia Garcia (D-TX) | 15 | Died in Committee. |
S.3538 | January 31, 2022 | Lindsey Graham(R-SC) | 23 | Died in Committee. | ||
118th Congress | EARN IT Act of 2023 | H.R. 2732 | April 19, 2023 | Ann Wagner (R-MO) | 29 | Referred to committees of jurisdiction. |
S.1207 | April 19, 2023 | Lindsey Graham (R-SC) | 24 | Referred to committees of jurisdiction. |
The National Center for Missing and Exploited Children endorsed the EARN IT Act on March 5, 2020, writing that "it provides ESPs [electronic service providers] with a roadmap to adopt specific, consistent best practices developed by industry and subject matter experts to prevent, reduce, and respond to the online sexual exploitation of children". [23] On the same day, the National Center on Sexual Exploitation, an anti-pornography organization, praised the act as "the best piece of accountability in the tech space since the passage of FOSTA-SESTA in 2018, which makes it illegal for interactive computer services to knowingly facilitate sex trafficking". [24]
A coalition of 25 organizations, including FreedomWorks and the Wikimedia Foundation, published an open letter on March 6, 2020, expressing "strong opposition" to the EARN IT Act, citing perceived conflicts with the First and Fourth Amendments. [25] [26] The EARN IT Act was also criticized by the Electronic Frontier Foundation as "a direct threat to constitutional protections for free speech and expression" on January 31, [27] [28] by Human Rights Watch as a bill that "falsely suggests that we must choose between protecting children and protecting other fundamental rights, including privacy and free expression" on June 1, [29] [30] and by the American Civil Liberties Union, which stated that "the EARN IT Act will undermine the privacy of every single American, stifle our ability to communicate freely online, and harm LGBTQ people, sex workers, and protesters" on July 1. [31] [32] Opponents of the EARN IT Act argued that some of the "best practices" would most likely include a backdoor for law enforcement into any encryption used on the site, in addition to the dismantling of Section 230's approach, based on commentary made by members of the federal agencies that would be placed on this commission. For example, former Attorney General Barr has extensively argued that the use of end-to-end encryption by online services can obstruct investigations by law enforcement, especially those involving child exploitation and has pushed for a governmental backdoor into encryption services. The Senators behind EARN IT have stated that there is no intent to bring any such encryption backdoors with this legislation; [33] according to The Washington Post , Richard Blumenthal said that "lawmakers wouldn't offer a blanket exemption to using encryption as evidence, arguing companies might use it as a 'get-out-of-jail-free card.'" [34] [35]
In February 2022, 60 privacy and human rights groups sent a letter to lawmakers expressing opposition to the EARN IT Act. [36]
Kir Nuthi, former Public Affairs Manager for NetChoice, explained in Slate that compelling all internet services to proactively monitor for child sexual abuse material could make it inadmissible as evidence under the Fourth Amendment due to the Exclusionary rule, as it was not collected voluntarily. [37]
In a statement following the Senate Judiciary Committee's unanimous passage of the bill, Graham praised the bipartisanship against the "scourge of child sexual abuse material and the exploitation of children on the internet." [38] Further, he asserted that social media companies and internet service providers would be able to defend themselves in a civil suit as long as they employ "the best business practices." [38] [ non-primary source needed ]
Wyden was critical of the bill, calling it "a transparent and deeply cynical effort by a few well-connected corporations and the Trump administration to use child sexual abuse to their political advantage, the impact to free speech and the security and privacy of every single American be damned." [16] [39] Graham stated that the goal of the bill was "to do this in a balanced way that doesn't overly inhibit innovation, but forcibly deals with child exploitation." [40] As an implicit response to EARN IT, Wyden along with House Representative Anna G. Eshoo proposed a new bill, the Invest in Child Safety Act, in May 2020 that would give US$5 billion to the Department of Justice to give additional manpower and tools to enable them to address child exploitation directly rather than to rely on technology companies to rein in the problem. [41]
While the language of the proposed bill does not directly mention encryption, security experts anticipate that it will be addressed in committee recommendations should the bill pass. These recommendations may include requiring any online service that provides end-to-end encryption to begin including backdoors that would allow government or law enforcement to read private communications. [42] Many companies with strong security use end-to-end encryption on data transmitted between the company and the consumer. This encryption also means, by definition, that no-one, including governments, is able to scan this data for child sexual abuse material and other prohibited content before it reaches its destination. Some experts worry that companies may eliminate encryption on their online platforms because they fear civil and criminal liability if they are unable to prevent such content from being posted on their platforms. [43] These experts argue that the proposed bill could discourage the use of encryption, resulting in less secure personal data that may be more easily accessible to hackers. [44] Other experts have gone a step further, arguing that any barriers to the use of encryption will result in a more dangerous and less free internet. [45] [46]
The Communications Decency Act of 1996 (CDA) was the United States Congress's first notable attempt to regulate pornographic material on the Internet. In the 1997 landmark case Reno v. ACLU, the United States Supreme Court unanimously struck the act's anti-indecency provisions.
The Rape, Abuse & Incest National Network (RAINN) is an American nonprofit anti-sexual assault organization, the largest in the United States. RAINN operates the National Sexual Assault Hotline, as well as the Department of Defense Safe Helpline, and carries out programs to prevent sexual assault, help survivors, and ensure that perpetrators are brought to justice through victim services, public education, public policy, and consulting services.
The National Center for Missing & Exploited Children (NCMEC) is a private, nonprofit organization established in 1984 by the United States Congress. In September 2013, the United States House of Representatives, United States Senate, and the President of the United States reauthorized the allocation of $40 million in funding for the organization as part of Missing Children's Assistance Reauthorization Act of 2013. The current chair of the organization is Jon Grosso of Kohl's. NCMEC handles cases of missing minors from infancy to young adults through age 20.
The PROTECT Act of 2003 is a United States law with the stated intent of preventing child abuse as well as investigating and prosecuting violent crimes against children. "PROTECT" is a backronym which stands for "Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today".
The Violence Against Women Act of 1994 (VAWA) is a United States federal law signed by President Bill Clinton on September 13, 1994. The Act provided $1.6 billion toward investigation and prosecution of violent crimes against women, imposed automatic and mandatory restitution on those convicted, and allowed civil redress when prosecutors chose to not prosecute cases. The Act also established the Office on Violence Against Women within the U.S. Department of Justice.
The legal age of consent for sexual activity varies by jurisdiction across Asia. The specific activity engaged in or the gender of participants can also be relevant factors. Below is a discussion of the various laws dealing with this subject. The highlighted age refers to an age at or above which an individual can engage in unfettered sexual relations with another who is also at or above that age. Other variables, such as homosexual relations or close in age exceptions, may exist, and are noted when relevant.
In the United States, internet censorship is the suppression of information published or viewed on the Internet in the United States. The First Amendment of the United States Constitution protects freedom of speech and expression against federal, state, and local government censorship.
Section 230 is a section of Title 47 of the United States Code that was enacted as part of the Communications Decency Act of 1996, which is Title V of the Telecommunications Act of 1996, and generally provides immunity for online computer services with respect to third-party content generated by its users. At its core, Section 230(c)(1) provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by third-party users:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
Internet censorship in New Zealand refers to the New Zealand Government's system for filtering website traffic to prevent Internet users from accessing certain selected sites and material. While there are many types of objectionable content under New Zealand law, the filter specifically targets content depicting the sexual abuse or exploitation of children and young persons. The Department of Internal Affairs runs the filtering system, dubbed the Digital Child Exploitation Filtering System (DCEFS). It is voluntary for Internet Service Providers (ISPs) to join.
Child pornography is illegal in most countries, but there is substantial variation in definitions, categories, penalties, and interpretations of laws. Differences include the definition of "child" under the laws, which can vary with the age of sexual consent; the definition of "child pornography" itself, for example on the basis of medium or degree of reality; and which actions are criminal. Laws surrounding fictional child pornography are a major source of variation between jurisdictions; some maintain distinctions in legality between real and fictive pornography depicting minors, while others regulate fictive material under general laws against child pornography.
Child sexual abuse laws in India have been enacted as part of the child protection policies of India. The Parliament of India passed the 'Protection of Children Against Sexual Offences Bill (POCSO), 2011' regarding child sexual abuse on 22 May 2012, making it an Act. A guideline was passed by the Ministry of Women and Child Development, India. The rules formulated by the government in accordance with the law had also been notified on the November 2012 and the law had become ready for implementation. There have been many calls for more stringent laws.
Backpage.com was a classified advertising website founded in 2004 by the alternative newspaper chain New Times Inc./New Times Media as a rival to Craigslist.
PhotoDNA is a proprietary image-identification and content filtering technology widely used by online service providers.
Revenge porn is the distribution of sexually explicit images or videos of individuals without their consent. The material may have been made by a partner in an intimate relationship with the knowledge and consent of the subject at the time, or it may have been made without their knowledge. The subject may have experienced sexual violence during the recording of the material, in some cases facilitated by narcotics such as date rape drugs which also cause a reduced sense of pain and involvement in the sexual act, dissociative effects and amnesia. The possession of the material may be used by the perpetrators to blackmail the subjects into performing other sexual acts, to coerce them into continuing a relationship or to punish them for ending one, to silence them, to damage their reputation, and/or for financial gain. In the wake of civil lawsuits and the increasing numbers of reported incidents, legislation has been passed in a number of countries and jurisdictions to outlaw the practice, though approaches have varied and been changed over the years. The practice has also been described as a form of psychological abuse and domestic violence, as well as a form of sexual abuse.
FOSTA and SESTA are U.S. Senate and House bills which became law on April 11, 2018. They clarify the country's sex trafficking law to make it illegal to knowingly assist, facilitate, or support sex trafficking, and amend the Section 230 safe harbors of the Communications Decency Act to exclude enforcement of federal or state sex trafficking laws from its immunity. Senate sponsor Rob Portman had previously led an investigation into the online classifieds service Backpage, and argued that Section 230 was protecting its "unscrupulous business practices" and was not designed to provide immunity to websites that facilitate sex trafficking.
OnlyFans is an internet content subscription service based in London, United Kingdom. The service is used primarily by sex workers who produce pornography, but it also hosts the work of other content creators, such as physical fitness experts and musicians.
The Emmett Till Antilynching Act is a United States federal law which defines lynching as a federal hate crime, increasing the maximum penalty to 30 years imprisonment for several hate crime offences.
The Online Safety Act 2023 is an act of the Parliament of the United Kingdom to regulate online speech and media. It passed on 26 October 2023 and gives the relevant Secretary of State the power, subject to parliamentary approval, to designate and suppress or record a wide range of speech and media deemed "harmful".
An Act Relating to censorship of or certain other interference with digital expression, including expression on social media platforms or through electronic mail messages, also known as Texas House Bill 20 (HB20), is a Texas anti-deplatforming law enacted on September 9, 2021.
The Regulation to Prevent and Combat Child Sexual Abuse is a European Union regulation proposed by the European Commissioner for Home Affairs Ylva Johansson on 11 May 2022. The stated aim of the legislation is to prevent child sexual abuse online through the implementation of a number of measures, including the establishment of a framework that would make the detection and reporting of child sexual abuse material (CSAM) by digital platforms a legal requirement within the European Union.